Low Hop Bing J:

Appeal

This is an appeal by the appellants-defendants ("the defendants") against the decision of the learned sessions court judge ("the trial judge") who on 4 April 2003 awarded a sum of RM30,000 to the respondent-plaintiff ("plaintiff) for "fracture C1 vertebra".

The appeal is against quantum only.

Submission For Defendants

En Vincent Choo Kok Wai, learned counsel for the appellants, relied on Lau Ee Ee v. Tang King Kwong ; [1986] 1 MLJ 308 and submitted that the quantum should have been between RM12,000 and RM16,000 as the specialist's medical report revealed no residual neurological deficits, and that the impugned award of RM30,000 is 200% higher than the normal award given for the injury in question. Being an excessive award, on the basis of Greenfield v. London and North Eastern Railway Co[1945] KB 89, he added that an appellate court could review the quantum.

Contention For Plaintiff

Muhammad Hisham Segaran, learned counsel for the respondent, contended that an appellate court should be disinclined to interfere with an assessment of damages, citing Zamri Md Som & Anor v. Nurul Fitriyaton Idawiyah Nahrawi [2002] 1 CLJ 309; Hang Jong Juan v. Tan Yeo Soon ; [1986] 2 MLJ 53; Pang Ah Chee v. Chong Kwee Sang [1985] CLJ 236 (Rep); [1985] 1 MLJ 153; Lim Joo Chiang v. Lim Siew Choo & Anor ; [1955] MLJ 201; Amar Singh v. Chin Kiew ; [1960] MLJ 77; Peh Diana & Anor v. Tan Miang Lee ; [1991] 3 MLJ 375; Greenfield, supra; Tan Kuan Yau v. Suhindrimani [1985] 1 CLJ 429; [1985] CLJ 323 (Rep); [1985] 2 MLJ 22; Mohd Salleh Shariff & Anor v. Bahari Yaakob ; Sivalingam v. Periasamy [1996] 4 CLJ 545; Woon Ngee Yew & Ors v. Ng Yoon Thai & Ors; [1941] MLJ 37; Wilson v. Pilley[1957] 3 All ER 525; Topaiwah v. Salleh; [1968] 1 MLJ 284; and Tan Cheong Poh & Anor v. Teow Ah Keow [1996] 3 CLJ 665.

Decision On Appeal

Role of Appellate Court in Respect of Quantum

In Zamri Md Som, supra,which was an appeal against the sessions court judge's award on quantum of damages, I had the occasion to consider the role of an appellate court hearing an appeal against the decision of a lower court in respect of assessment of damages, by referring to and following the decision of the Federal Court in Topaiwah, supra, as follows:

The Federal Court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted on some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled.

I also sought guidance from the decision of the Federal Court in Rasidin bin Partorjo v. Frederick Kiat[1976] 2 MLJ 214 which reiterated that "on appeal against the damages awarded, the appellant had to convince the appellate court that the learned trial judge had acted on a wrong principle of law or had misapprehended the facts or had for other reasons made a wholly erroneous estimate of the damages suffered" (see also Peh Diana & Anor, supra; Greenfield, supra; Tan Kuan Yau, supra).

The onus on the appellant is a heavy one: Hang Jong Juan, supra, S'pore Court of Appeal; Lira Joo Chiang, supraPC.

The finding that a trial judge has erred in the direction of being too generous would not be itself constitute a matter to be appealed from: Pang Ah Chee, supra.

The fixation of damages is so largely a matter of opinion or of impression that differences of calculation or assessment are to be expected, as it is, to some extent, an exercise of discretion: Amar Singh, supra, FM CA.

The aforesaid principles have also been reiterated in the cases cited for the respondent.

Question For Determination

The question for determination in this appea